Tuesday, November 18, 2014

United States v. Morrison, Part II: More on Special Conditions of Supervised Release

Yesterday, we discussed one aspect of United States v. Morrison.
The case also concerned the imposition of two special conditions of supervised release. One was a ban on cameras; the other a ban on the Internet. Both bans had an identical exception: permission from the probation office. In other words, if a probation officer decides that it is ok for Mr. Morrison to possess cameras, or to use the Internet, then it is ok. If not, then it is not.
Now, initially, this delegation of authority would appear problematic. After all, district courts, not probation officers, impose sentences, and conditions of supervised release are aspects of a sentence. At least one court would have a problem with the conditions on this ground. Mr. Morrison made a delegation argument on appeal, but not in the district court. The Court refused to consider the argument, however, holding that he failed to develop the argument in his briefs (we've read the briefs and respectfully disagree).
Let's think about this argument for a second. The conditions themselves were outright bans; the delegation allows the probation office to lessen the prohibition. Without this delegation, Mr. Morrison cannot possess cameras or use the Internet; with it, maybe he can. Conditions of supervised release may be modified "at any time" via a motion filed pursuant to 18 USC 3583(e)(2). Rule 32.1(c)(1) provides that defendants have the right to counsel at modification proceedings. So, perhaps the better route in such instances is to wait until the defendant serves his prison sentence and is released on supervised release. If probation refuses to lessen the bans, then an attorney, on behalf of the defendant, can move to modify the conditions, knowing that a court cannot fall back on (a probably improper) delegation to the probation office. Just a thought.Mr. Morrison ran into other procedural hurdles. The Court held that his attack on the Internet ban was waived because he did not object to it below. Typically, a failure to object results in forfeiture, and plain error review on appeal, but here the Court found waiver, meaning no appellate review whatsoever, because, when prompted to object by the district court (apparently this attorney objected regularly (and rightfully, we think) to these types of conditions), the attorney objected only to the camera ban and not the Internet ban. This, says the Tenth Circuit, was deliberate; the attorney "thought about the argument, used it to argue in favor of a lesser sentence, and then chose not to object to it." The lesser sentence argument was an interesting one, although it did not work: impose a shorter sentence because the defendant, when released, will serve a lengthy term of supervised release under extremely strict conditions. As this case highlights, try this argument at your peril.
In a footnote, the Tenth Circuit suggested that, even if it were to consider the issue, it would uphold the ban because "the Guidelines recommend that courts impose this special condition," citing USSG 5G1.3(d)(7)(B). The Tenth Circuit is wrong. This Guideline suggests that district courts impose conditions in child pornography cases "limiting the use of a computer," not prohibiting the use of a computer. There is an obvious difference between a limitation and a prohibition.This is getting long. Briefly, the camera ban. We think this was completely inappropriate considering that the case has nothing to do with Mr. Morrison's use of a camera. As far as we can tell, there were no allegations whatsoever that he took, or attempted to take, pictures of children. Actually, we have no idea if Mr. Morrison has ever even owned a camera. So, why ban a camera? Because he had images of child pornography that someone else took with a camera? There is no logic in this. So, instead of logic, the Court relied on cases from other Circuits. Yet, if you actually read those cases, they are materially different from the facts and circumstances of this case.Let's hope Mr. Morrison has a reasonable probation officer. After all, the purpose of supervised release is to reintegrate defendants into society; that is impossible with prohibitions like the ones imposed in this case. If all else fails, we hope Mr. Morrison knows of his right to move to modify these draconian conditions if they actually come to pass.